[Code of Federal Regulations]
[Title 49, Volume 4]
[Revised as of October 1, 2003]
[CITE: 49CFR201]
[Page 9-15]
TITLE 49--TRANSPORTATION
CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
PART 201--FORMAL RULES OF PRACTICE FOR PASSENGER SERVICE--Table of Contents
Sec.
201.1 General.
201.3 Definitions.
201.4 Scope of regulations.
201.5 Applications.
201.6 Notice of hearing.
201.7 Notification by interested persons.
201.8 Presiding officer.
201.9 Direct testimony submitted as written documents.
201.10 Mailing address.
201.11 Inspection and copying of documents.
201.12 Ex parte communications.
201.13 Prehearing conference.
201.14 Final agenda of the hearing.
201.15 Determination to cancel the hearing.
201.16 Rebuttal testimony and new issues of fact in final agenda.
201.17 Waiver of right to participate.
201.18 Conduct of the hearing.
201.19 Direct testimony.
201.20 Cross-examination.
201.21 Oral and written arguments.
201.22 Recommended decision, certification of the transcript, and
submission of comments on the recommended decision.
201.23 Administrator's decision.
Authority: Secs. 402(f) and (h) of Pub. L. 91-518, 84 Stat. 1327, as
amended by sec. 10(2) of Pub. L. 93-146, 87 Stat. 548 and sec. 216 of
Pub. L 96-254, 94 Stat. 418 (45 U.S.C. 562 (f) and (h)); sec. 1.49 of
Title 49, Code of Federal Regulations.
Source: 46 FR 2614, Jan. 12, 1981, unless otherwise noted.
Sec. 201.1 General.
This part prescribes procedures under which applications will be
received and heard and by which rules and orders will be issued under
subsections 402(f) and (h) of the Rail Passenger Service Act (45 U.S.C.
562 (f) and (h)).
Sec. 201.3 Definitions.
(a) The definitions set forth in Sec. 200.3 shall apply to this
part.
(b) The following definitions shall also apply to this part:
(1) Party means--
(i) The Administrator or his representative; or
(ii) A person who has notified the Administrator by specified dates
of his or her intent to participate in the hearing pursuant to
Secs. 201.7 and 201.16(b).
(2) Witness means any person who submits written direct testimony on
an application to the Secretary under this part. A person may be both a
party and a witness.
Sec. 201.4 Scope of regulations.
The procedural regulations in this part govern the practice and
procedure in hearings held under subsections 402(f) and (h) of the Act.
These hearings will be governed by the provisions of 5 U.S.C. 556 and
557 of the Administrative Procedure Act. The regulations shall be
construed to secure the just, speedy, and inexpensive determination of
all issues raised with respect to any proposal to increase speeds or to
add trains pursuant to subsections 402(f) and (h) of the Act with full
protection for the rights of all persons affected thereby.
Sec. 201.5 Applications.
(a) Each application and objection under this part shall be
submitted in writing to: Docket Clerk, Office of the Chief Counsel,
Federal Railroad Administration, 400 7th Street, SW., Washington, DC
20590.
(b) Any procedural issues arising from the submission or
consideration of applications under this part, such as timeliness and
adequacy, shall be heard and decided by the presiding officer appointed
under Sec. 201.8.
(c) In accordance with subsection 402(f) of the Act, Amtrak may
apply to the Administrator for an order requiring a railroad to permit
accelerated speeds by Amtrak trains. Each application shall:
(1) List by endpoints the routes for which Amtrak desires such
acceleration;
(2) Not list routes of more than one railroad;
(3) Indicate by route and train the maximum speeds for Amtrak trains
permitted by the railroad and the maximum speeds desired by Amtrak;
(4) Indicate for each route listed the track classification as
specified in FRA track safety standards (49 CFR part 213); and
[[Page 10]]
(5) Explain why the maximum speeds Amtrak desires are safe and
practicable, or what track, signal system, or other facility
improvements would make such speeds safe and practicable.
(d) In accordance with subsection 402(h) of the Act, Amtrak may
apply to the Administrator for an order to require a railroad to permit
or provide the operation of additional passenger trains on its rail
lines. Each application shall:
(1) List the railroad, the endpoints of the proposed additional
train or trains, and the proposed schedule for such additional train or
trains, and
(2) Describe and give the background of all prior efforts and
negotiations to obtain a satisfactory voluntary agreement with the
railroad for the operation of the proposed additional train or trains.
(e) In addition to the data provided with their applications,
applicants shall furnish the Administrator with any other information
that the Administrator finds necessary in order to make the
determinations required by the Act.
(f) Each applicant shall promptly notify, by registered or certified
mail, any party affected by any application, whether Amtrak or a
railroad, of the submission of each application under this part, and
shall provide a copy of the application with such notice. An official U.
S. Postal Service return receipt from the registered or certified
mailing constitutes prima facie evidence of notice.
Sec. 201.6 Notice of hearing.
(a) A notice of hearing on an application shall be published in the
Federal Register.
(b) The notice shall state:
(1) The nature of the hearing;
(2) The place and date of the hearing. The date shall not be less
than 60 days after publication of notice of the hearing;
(3) The legal authority under which the hearing is to be held;
(4) Issues of fact which may be involved in the hearing;
(5) If a draft Environmental Impact Statement is required, the date
of publication of the draft and the place(s) where the draft and
comments thereon may be viewed and copied;
(6) The place(s) where records and submitted direct testimony will
be kept for public inspection;
(7) The final date for filing a notice of intent to participate in
the hearing;
(8) The final date for submission of direct testimony on the
application, and the number of copies required;
(9) The docket number assigned to the case, which shall be used in
all subsequent proceedings; and
(10) The place and date of the prehearing conference.
Sec. 201.7 Notification by interested persons.
Any person desiring to participate as a party shall notify the
Administrator, by registered or certified mail, on or before the date
specified in the notice.
Sec. 201.8 Presiding officer.
(a) Upon publication of the notice of hearing pursuant to
Sec. 201.6, the Administrator shall appoint a presiding officer pursuant
to 5 U.S.C. 3105. No individual who has any conflict of interest,
financial or otherwise, shall serve as presiding officer in such
proceeding.
(b) The presiding officer, in any proceeding under this part, shall
have power to:
(1) Change the time and place of the hearing and adjourn the
hearing;
(2) Evaluate direct testimony submitted pursuant to these
regulations, make a preliminary determination of the issues, conduct a
prehearing conference to determine the issues for the hearing agenda,
and cause to be published in the Federal Register a final hearing
agenda;
(3) Rule upon motions, requests, and admissibility of direct
testimony;
(4) Administer oaths and affirmations, question witnesses, and
direct witnesses to testify;
(5) Modify or waive any rule (after notice) upon determining that no
party will be prejudiced;
(6) Receive written comments and hear oral agruments;
(7) Render a recommended decision; and
(8) Do all acts and take all measures, including regulation of media
coverage, for the maintenance of order at
[[Page 11]]
and the efficient conduct of the proceeding.
(c) In case of the absence of the original presiding officer or his
inability to act, the Administrator may assign to a successor the powers
and duties of the original presiding officer without abatement of the
proceeding unless otherwise ordered by the Administrator.
(d) The presiding officer may upon his own motion withdraw as
presiding officer in a proceeding if he deems himself to be
disqualified.
(e) A presiding officer may be requested to withdraw at any time
prior to the recommended decision. Upon the filing by an interested
person in good faith of a timely and sufficient affidavit alleging the
presiding officer's personal bias, malice, conflict of interest, or
other basis which might result in prejudice to a party, the hearing
shall recess. The Administrator shall immediately act upon such
allegation as a part of the record and decision in the proceeding, after
making such investigation or holding such hearings, or both, as he may
deem appropriate in the circumstances.
Sec. 201.9 Direct testimony submitted as written documents.
(a) Unless otherwise specified, all direct testimony, including
accompanying exhibits, shall be submitted to the presiding officer in
writing no later than the dates specified in the notice of the hearing,
the final hearing agenda, or within 15 days after the conclusion of the
prehearing conference, as the case may be. All direct testimony shall be
in affidavit form, and exhibits constituting part of such testimony,
referred to in the affidavit and made a part thereof, shall be attached
to the affidavit. Direct testimony submitted with exhibits shall state
the issue to which the exhibit relates; if no such statement is made,
the presiding officer shall determine the relevance of the exhibit to
the issues published in the Federal Register.
(b) The direct testimony submitted shall contain:
(1) A concise statement of the witness' interest in the proceeding
and his position regarding the issues presented. If the direct testimony
is presented by a witness who is not a party, the witness shall state
his relationship to the party;
(2) Facts that are relevant and material; and
(3) Any proposed issues of fact not stated in the notice of the
hearing and the reason(s) why such issues should be considered at the
hearing.
(c) Ten copies of all direct testimony shall be submitted unless the
notice of the hearing specifies otherwise.
(d) Upon receipt, direct testimony shall be assigned a number and
stamped with that number and the docket number.
(e) Contemporaneous with the publication of the notice of hearing,
Amtrak's direct testimony in support of its application shall be
available for public inspection as specified in the notice of hearing.
Amtrak may submit additional direct testimony during the time periods
allowed for submission of such testimony by witnesses.
Sec. 201.10 Mailing address.
Unless otherwise specified in the notice of hearing, all direct
testimony shall be addressed to the Docket Clerk, Office of the Chief
Counsel, Federal Railroad Administration, 400 7th Street, SW.,
Washington, DC 20590. All affidavits and exhibits shall be clearly
marked with the docket number of the proceeding.
Sec. 201.11 Inspection and copying of documents.
(a) If confidential financial information is not involved, any
document in a file pertaining to any hearing authorized by this part or
any document forming part of the record of such a hearing may be
inspected or copied in the Office of the Chief Counsel, Federal Railroad
Administration, 400 7th Street, SW., Washington, DC 20590, unless the
file is in the care and custody of the presiding officer in which case
he shall notify the parties as to where and when the record may be
inspected.
(b) If confidential financial information is involved, the presiding
officer, at his discretion, upon the request of any party, may deny the
public inspection and copying of such information.
[[Page 12]]
Sec. 201.12 Ex parte communications.
(a) After notice of a hearing is published in the Federal Register,
all communications, whether oral or written, involving any substantive
or procedural issue and directed either to the presiding officer or to
the Administrator, without reference to these rules of procedure, shall
be deemed ex parte communications and shall not be considered part of
the record for decision. A record of oral ex parte communications shall
be made by the persons contacted. All written ex parte communications
shall be available for public viewing at the places(s) specified in the
notice of hearing.
(b) The presiding officer shall not consult any person or party on
any fact in issue or on the merits of the matter unless notice and
opportunity is given for all parties to participate.
Sec. 201.13 Prehearing conference.
(a) After an examination of all the direct testimony submitted, the
presiding officer shall make a preliminary determination of issues of
fact to be addressed at the hearing.
(b) The presiding officer's preliminary determination shall be made
available at the place or places provided in the notice of the hearing
at least five days before the prehearing conference is held.
(c) The purpose of the prehearing conference shall be to enable the
presiding officer to determine, on the basis of the direct testimony
submitted and prehearing discussions:
(1) Whether the presiding officer's preliminary determination of
issues of fact for the hearing has omitted or misconstrued any
significant issues, and
(2) The nature of the interest of each party and which parties'
interests are adverse.
(d) Only parties may participate in the prehearing conference. A
party may appear in person or be represented by counsel.
(e) Parties who do not appear at the prehearing conference shall be
bound by the conference's determinations.
Sec. 201.14 Final agenda of the hearing.
(a) After the prehearing conference, the presiding officer shall
prepare a final agenda which shall be published in the Federal Register
within ten days after the conclusion of the conference. A copy of the
final agenda shall be mailed to all parties.
(b) The final agenda shall list:
(1) All the issues the hearing shall address, the order in which
those issues shall be presented, and the direct testimony submitted on
those issues; and
(2) A final date for submission of direct testimony on issues of
fact not included in the notice of hearing if such issues are presented.
The final agenda may also specify a final date for submission of direct
testimony to rebut testimony previously submitted during the time
specified in the notice of the hearing.
(c) The presiding officer shall publish with the final agenda a list
of witnesses who may appear at the hearing, a list of parties, the
nature of the interest of each party, and which parties' interests are
adverse on the issues presented.
Sec. 201.15 Determination to cancel the hearing.
(a) If the presiding officer concludes that no issues of fact are
presented by the direct testimony submitted, he shall publish such
conclusion in the Federal Register with a notice that a hearing shall
not be held. The notice shall set forth a date for filing written
comments on the proposed recommended decision. Written comments may
include proposed findings and conclusions, arguments, or briefs.
(b) A person need not be a party to submit written comments.
(c) Promptly after expiration of the period for receiving written
comments, the presiding officer shall make a recommended decision based
on the record, which in this case shall consist of the testimony,
exhibits, and written comments submitted. He shall transfer to the
Administrator his recommended decision, the record, and a certificate
stating that the record contains all the written direct testimony and
comments submitted. The Administrator shall then make a final decision
in accordance with these regulations.
[[Page 13]]
Sec. 201.16 Rebuttal testimony and new issues of fact in final agenda.
(a) Direct testimony to rebut testimony offered during the time
period specified in the notice of hearing may be submitted pursuant to
these regulations within fifteen days after the conclusion of the
prehearing conference unless the presiding officer otherwise specifies
in the final agenda.
(b) If the final agenda presents issues not included in the notice
of the hearing published pursuant to Sec. 201.6,
(1) Any person interested in participating at the hearing on such
issues presented shall notify the Administrator by certified mail of an
intent to participate not later than ten days after publication of the
final agenda. Such person may present direct testimony or cross-examine
witnesses only on such issues presented unless he previously notified
the Administrator pursuant to Sec. 201.7, and
(2) Additional written direct testimony concerning such issues may
be submitted within the time provided in the final agenda. Such direct
testimony will comply with the requirements of Sec. 201.9.
Sec. 201.17 Waiver of right to participate.
Persons who fail to notify the Administrator pursuant to Secs. 201.7
and 201.16 shall be deemed to have waived their right to participate as
parties in any part of the hearing.
Sec. 201.18 Conduct of the hearing.
(a) The hearing shall be held at the time and place fixed in the
notice of hearing, unless the presiding officer changes the time or
place. If a change occurs, the presiding officer shall publish the
change in the Federal Register and shall expeditiously notify all
parties by telephone or by mail; provided, that if the change in time or
place of hearing is made less than five days before the date previously
fixed for the hearing, the presiding officer shall also announce, or
cause to be announced, the change at the time and place previously fixed
for the hearing.
(b) The presiding officer shall, at the commencement of the hearing,
introduce into the record. The notice of hearing as published in the
Federal Register; all subsequent notices published in the Federal
Register; the draft Environmental Impact Statement if it is required,
and the comments thereon and agency responses to the comments; and a
list of all parties. Direct testimony shall then be received with
respect to the matters specified in the final agenda in such order as
the presiding officer shall announce. With respect to direct testimony
submitted as rebuttal testimony or in response to new issues presented
by the prehearing conference, the presiding officer shall determine the
relevance of such testimony.
(c) The hearing shall be publicly conducted and reported verbatim by
an offical reporter.
(d) If a party objects to the admission or rejection of any direct
testimony or to any other ruling of the presiding officer during the
hearing, he shall state briefly the grounds of such objection, whereupon
an automatic exception will follow if the objection is overruled by the
presiding officer. The transcript shall not include argument or debate
thereon except as ordered by the presiding officer. The ruling of the
presiding officer on any objection shall be a part of the transcript and
shall be subject to review at the same time and in the same manner as
the Administrator's final decision. Only objections made before the
presiding officer may subsequently be relied upon in the proceedings.
(e) All motions and requests shall be addressed to, and ruled on by,
the presiding officer if made prior to his certification of the
transcript, or by the Administrator if made thereafter.
Sec. 201.19 Direct testimony.
(a) Direct testimony shall be submitted by affidavit as provided in
these regulations and introduced at the hearing by a witness in order to
be considered part of the record. Such direct testimony shall not be
read into evidence but shall become a part of the record subject to
exclusion of irrelevant and immaterial parts thereof.
(b) The witness introducing direct testimony shall:
(1) State his name, address, and occupation;
[[Page 14]]
(2) State his qualifications for introducing the direct testimony.
If an expert, the witness shall briefly state the scientific or
technical training that qualifies him as an expert;
(3) Identify the direct testimony previously submitted in accordance
with these regulations; and
(4) Submit to appropriate direct and cross examination. Cross-
examination shall be by a party whose interests are adverse to those of
the witness on the issue presented if the witness is a party, or adverse
to the interests of the party who presented the witness if the witness
is not a party.
(c) A party shall be deemed to have waived the right to introduce
direct testimony if such party fails to present a witness to introduce
the direct testimony.
(d) Offical notice may be taken of such matters as are judicially
noticed by the courts of the United States, provided, that parties shall
be given adequate notice by the presiding officer at the hearing of
matters so noticed and shall be given adequate opportunity to show that
such facts are inaccurate or are erroneously noticed.
Sec. 201.20 Cross-examination.
(a) The presiding officer may:
(1) Require the cross-examiner to outline the intended scope of the
cross-examination;
(2) Prohibit parties from cross-examining witnesses unless the
presiding officer has determined that the cross-examiner has an adverse
interest on the facts at issue to the party-witness. For the purposes of
this subsection, the Administrator's or his representative's interest
shall be considered adverse to all parties;
(3) Limit the number of times any party or parties having a common
interest may cross-examine an ``adverse'' witness on the same matter;
and
(4) Exclude cross-examination questions that are immaterial,
irrelevant, or unduly repetitious.
(b) Any party shall be given an opportunity to appear, either in
person or through an authorized counsel or representative, to cross-
examine witnesses. Before cross-examining a witness, the party or
counsel shall state his name, address, and occupation. If counsel cross-
examines the witness, counsel shall state for the record the authority
to act as counsel. Cross-examiners shall be assumed to be familiar with
the direct testimony.
(c) Any party or party's counsel who fails to appear at the hearing
to cross-examine an ``adverse'' witness shall be deemed to have waived
the right to cross-examine that witness.
(d) Scientific, technical, or commercial publications may be used
only for the limited purpose of impeaching witnesses under cross-
examination unless previously submitted and introduced in accordance
with these regulations.
Sec. 201.21 Oral and written arguments.
(a) The presiding officer may, in his discretion, provide for oral
argument at the end of the hearing. Such argument, when permitted, may
be limited by the presiding officer to the extent necessary for the
expeditious disposition of the proceeding.
(b) The presiding officer shall announce at the hearing a reasonable
period of time within which any interested person may file with the
presiding officer any written comments on the application, including
proposed findings and conclusions or written arguments or brief based
upon the record, citing where practicable the relevant page or pages of
the transcript. If a party filing a brief desires the presiding officer
to reconsider any objection made by such party to a ruling of the
presiding officer, he shall specifically identify such rulings by
reference to the pertinent pages of the transcript and shall state his
arguments thereon as a part of the brief.
(c) Oral or written arguments shall be limited to issues arising
from direct testimony on the record.
Sec. 201.22 Recommended decision, certification of the transcript, and
submission of comments on the recommended decision.
(a) Promptly after expiration of the period for receiving written
briefs, the presiding officer shall make a recommended decision based on
the record and transmit the decision to the Administrator. The
recommended decision shall include:
[[Page 15]]
(1) A statement containing a description of the history of the
proceedings;
(2) Findings on issues of fact with the reasons therefor; and
(3) Rulings on issues of law.
(b) The presiding officer shall also transmit to the Administrator
the transcript of the hearing, the original and all copies of the direct
testimony, and written comments. The presiding officer shall attach to
the original transcript of the hearing a certificate stating that, to
the best of his knowledge and belief, the transcript is a true
transcript of the testimony given at the hearing except in such
particulars as are specified.
(c) Immediately after receipt of the recommended decision, the
Administrator shall give notice thereof in the Federal Register, send
copies of the recommended decision to all parties, and provide
opportunity for the submission of comments. The recommended decision may
be reviewed and/or copied in the Office of the Chief Counsel, Federal
Railroad Administration, 400 7th Street, SW., Washington, DC 20590.
(d) Within twenty days after the notice of receipt of the
recommended decision has been published in the Federal Register, any
interested person may file with the Administrator any written comments
on the recommended decision. All comments shall be submitted during the
twenty-day period to the Administrator at the above address.
Sec. 201.23 Administrator's decision.
(a) Upon receipt of the recommended decision and transcript and
after the twenty-day period for receiving written comments on the
recommended decision has passed, the Administrator's decision may
affirm, modify, or set aside, in whole or in part, the recommended
findings, conclusions, and decision of the presiding officer. The
Administrator may also remand the hearing record to the presiding
officer for a fuller development of the record.
(b) The Administrator's decision shall include:
(1) A statement containing a description of the history of the
proceeding;
(2) Findings on issues of fact with the reasons therefor; and
(3) Rulings on issues of law.
(c) The Administrator's decision shall be published in the Federal
Register. If the Amtrak application is approved in whole or in part, the
final order shall be promulgated with the decision.